People v. Superior Court (Frietag)

The issue in this writ proceeding is whether an allegation of great bodily injury improperly charged as an enhancement under an inapplicable section of the Penal Code nevertheless constitutes the adequate pleading of a fact rendering defendant statutorily ineligible for probation when found true by the jury. We shall hold that it does and order a peremptory writ to issue.

An amended information charged defendant with two counts of lewd and lascivious conduct on a child under 14 years of age (Pen. Code, § 288, subd. (a); all statutory references to sections of an undesignated code are to the Penal Code.) A third count charged defendant with felony child endangerment. (§ 273a, subd. 1.) Appended to the section 288, subdivision (a) charges were allegations that in the course of committing those offenses defendant caused great bodily injury to the victim “within the meaning of Penal Code section 12022.8.” A jury convicted defendant of all charges and found the great bodily injury allegations true.

Prior to sentencing defendant moved to dismiss the great bodily injury findings on the ground section 12022.8 under which they were expressly charged is by its terms inapplicable…